Punishment Justification and Goals by Richard S. Frase

Criminal punishments are government sanctions imposed on persons convicted of criminal acts (other forms of punishment, not dealt with in this bibliography, include measures imposed by parents on their children, by organizations on their members, by employers, etc.). Criminal punishment requires clear and convincing justification for two essential reasons. First, such punishment is, almost by definition, unpleasant and harmful to the offender, at least in the short term: it deliberately brands and stigmatizes that person as a wrongdoer, usually involves some loss of liberty or other harsh treatment, and often causes harm to the offender’s family. Second, punishment consumes scarce public resources that might be better spent on other pressing needs, or better spent on alternate ways of achieving the supposed justification(s) for the punishment. Punishment justifications and goals can be either positive or negative criteria: they can provide moral and/or practical arguments in favor of the punishment, or they can set limits on the type or degree of punishment that it is permissible to impose under one or more of the positive rationales. Whether positive or negative, punishment justifications and goals fall into two major categories. So-called deontological rationales and limits evaluate a particular punishment according to its inherent value—whether it is a good or a bad thing in itself, regardless of whether the punishment yields good or bad consequences. The second category of rationales and limits are “consequentialist” (or utilitarian); punishment is justified and limited according to whether it produces good or bad effects, in particular whether it tends to decrease future criminal acts by the offender and/or other would-be offenders. Some theories of punishment belong entirely to one or the other of these two main categories, but a number of hybrid or mixed theories have been proposed, incorporating both deontological and consequentialist principles, and most modern legal systems take this approach.

General Overviews

Bedau and Kelly 2010 provides a broad overview of traditional consequentialist and deontological theories of punishment and the evolution of these theories over time. Duff 2010 also reviews consequentialist and retributive theories, expanding his coverage to include a discussion of mixed, restorative, and abolitionist theories of punishment. Greenawalt 2001 reviews various punishment theories and notes how each theory is related to sentencing practices and to principles governing criminal procedure and criminal liability. Hart 2008 gives a philosophical perspective on punishment and the questions of who, why, and how society should choose to punish. Tonry 2006 discusses a broad range of legitimate and illegitimate punishment purposes, and proposes a model system.

• Bedau, Hugo A., and Erin Kelly. 2010. Punishment. In The Stanford encyclopedia of philosophy. Edited by Edward N. Zalta. Reviews consequentialist and deontological theories, their common features, changing emphasis given to each over time, and writings analyzing those changes. Asserts that punishment is inherently retributive but should also serve consequentialist purposes (especially incapacitation) and respect the principle of miminalism (of two equally effective penalties, the less severe is better).
• Duff, Antony. 2010. Legal punishment. In The Stanford encyclopedia of philosophy. Edited by Edward N. Zalta. Reviews consequentialist, retributive, mixed (hybrid), restorative, and abolitionist theories of punishment. Also examines how the justification of punishment depends on the existence and justifications for the criminal law and the state itself. Emphasizes one version of retributive theory based on the expressive or communicative character of punishment.
• Greenawalt, Kent. 2001. Punishment. In Encyclopedia of crime and justice. Vol. 3. 2d ed. Edited by Joshua Dressler, 1282–1294. New York: Macmillan Reference USA. A broad overview of the concept of punishment and various theories purporting to justify it, including retributive, utilitarian (consequentialist), and mixed (hybrid) theories. Examines how 20th-century changes in sentencing practice reflected changes in theory, and how sentencing theory is linked to principles governing criminal procedures and criminal liability.
• Hart, Herbert L. A. 2008. Punishment and responsibility: Essays in the philosophy of law. 2d ed. Oxford: Oxford Univ. Press. Chapter 1 defines “punishment” (unpleasant consequences, imposed intentionally and officially, on an actual or supposed offender), and argues that different justifications (e.g., retributive, utilitarian) may apply to the institution of punishment (why punish anyone?), the selection of persons to be punished, and the type or severity of punishment. First edition published in 1968 (Oxford: Clarendon).
• Tonry, Michael. 2006. Purposes and functions of sentencing. In Crime and justice: A review of research. Vol. 34. Edited by Michael Tonry, 1–53. Chicago: Univ. of Chicago Press. Reviews the current fragmented state of sentencing theory; proposes a model system employing legally binding guidelines based on limiting retributivism but accommodating treatment and restorative justice programs; the system should pursue purposes that are “primary” (e.g., rehabilitation) or “ancillary” (e.g., system efficiency), while rejecting illegitimate “latent” goals such as political advantage.

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